Facts
On October 4, 2005, B.A. assigned a claim against C. to his wife A.A. At that time, several debt enforcement proceedings were pending against B.A., which ultimately led to the issuance of certificates of loss. On October 10, 2005, A.A. filed a lawsuit against C. to collect the claim. The District Court dismissed the claim, as the assignment was unlawful and therefore null and void, since B.A. had not declared the claim within the framework of the attachment proceedings. The Higher Court upheld this decision.
Considerations
The Federal Supreme Court overturned the decision of the Higher Court and remanded the case to the first instance for a new assessment. It stated that the violation of Art. 164 para. 1 of the Swiss Criminal Code (Creditor Prejudice through Asset Reduction) does not automatically lead to the nullity of the legal transaction under Art. 20 para. 1 of the Swiss Code of Obligations. The criminal law provisions in the Swiss Criminal Code primarily serve the general preventive protection of creditors, while creditor protection is regulated in bankruptcy and debt enforcement law. The concept of the Debt Enforcement and Bankruptcy Act would be undermined if a violation of Art. 164 of the Swiss Criminal Code were to result in the nullity of the legal transaction.
Furthermore, the respondent argued that the appellant and her husband had used the legal institution of assignment for an improper purpose and had thus…